June 02, 2011

The Cat Came Back: California Allows "Reasonable" Costs of Treatment as Damages for Injury to Pet with No Market Value

Two years ago, in the case of McMahon v. Craig (in which I was counsel for the prevailing defendants), California's Court of Appeal (Fourth District) held that the owner of a pet or companion animal may not recover damages for "emotional distress" or "loss of companionship" when the animal is injured or dies as a result of negligence. The McMahon decision implied, without quite holding, that because animals are viewed as a form of property, the applicable measure of damages is the same as for any other sort of property damaged or destroyed through negligence: the reasonable cost of repair or the animal's market value, whichever is less.

Left unanswered in McMahon was this question: Under California law, when an animal has essentially no market value, can the owner recover anything beyond nominal damages for its injury or death? In particular, if the owner seeks veterinary treatment and the cost of that treatment exceeds any measurable economic value of the animal, can the cost of that treatment still be recovered as damages?

That question has now been considered by the First District of the Court of Appeal. That panel states its conclusion in the first paragraph of its May 31, 2011, decision in the case of Kimes v. Grosser [PDF]:

A defendant neighbor allegedly shot plaintiff's pet cat. To save the cat's life, plaintiff incurred substantial bills. The trial court dismissed the case on the grounds that the plaintiff would be unable to prove the value of the cat exceeded the costs of "repair." In this appeal, we are called upon to determine what damages can be awarded for a wrongful injury to a pet animal with little market value under these circumstances. We hold that the owner can recover the costs of care of the pet attributable to the injury of the pet attributable to the injury if the costs are found to be reasonable and necessary, and punitive damages if the injury is found to be intentional. Based on these conclusions, we reverse the judgment dismissing the case.

(Emphasis added.)

In Kimes, the plaintiff's cat "Pumkin" was shot with a pellet gun while sitting on a fence. Plaintiff took the cat for emergency surgery, at a cost of $6,000. The surgery saved Pumkin's life, but the cat remained partially paralyzed. Subsequent care for the paralysis cost an additional $30,000. It was essentially conceded that Pumkin's market value was minimal or nonexistent, so the trial court ruled as a matter of law that the veterinary bills were irrelevant and not to be considered at trial. With all practical value removed from the case by that ruling, the plaintiff concluded that the expense of trial could not be justified and allowed the case to be dismissed so that the determination could be reviewed on appeal.

After discussing McMahon and finding it not to be dispositive of the question before it—the plaintiff in Kimes was not seeking to recover for emotional distress or lost companionship, though one might, mightn't one, wonder whether any consideration other than emotional attachment justified the expenditure of $36,000 for care—the First District looked to a 1915 decision (Willard) in which "certain scrap books and other data" personally valuable to the plaintiff, a writer, but valueless to anyone else were lost in a fire.

The Willard court, quoting an out-of-state case, acknowledged '"it may be that no rule which will be absolutely be certain to do justice between the parties can be laid down"' for property without market value, but '"it does not follow from this, nor is it the law, that the plaintiff must be turned out of court with nominal damages merely."' Under this reasoning, where the property has no market value, the general rule limiting recovery to the loss of that value cannot apply, because it would invariably preclude any recovery. In such cases, the property's value '"[m]ust be ascertained in some other rational way, and from such elements as are attainable."'

* * *

In this case, plaintiff is not plucking a number out of the air for the sentimental value of damaged property; he seeks to present evidence of costs incurred for Pumkin's care and treatment by virtue of the shooting—a 'rational way of demonstrating a measure of damages apart from the cat's market value.... Plaintiff is entitled to have a jury determine whether the amounts he expended for Pumkin's care because of the shooting were reasonable.

* * *

[P]laintiff may present evidence of the bills incurred to save the cat's life and is entitled to recover the reasonable and necessary costs caused by someone who wrongfully injured the cat. Defendants are entitled to present evidence why the costs were unreasonable under the circumstances.

(Emphasis added; citations omitted.)

The Court's conclusion, it seems to me, leads to an anomalous or paradoxical result: the damages recoverable for harm caused to valueless property are potentially higher than those recoverable for valuable property. If Pumkin, for example, had been a prized show cat that could be shown to be worth, say, $2,500, there is little doubt that $2,500 would be the upper limit on damages and that the case would properly belong in Small Claims Court if it belongs anywhere. Because Pumkin is without a market value, however, the Court of Appeal justifies a potential upper limit on damages that may be $6,000 or even $36,000, if a jury concludes that it is "reasonable" to expend that much for care and maintenance of a "valueless" cat. In practical terms, despite its protestations to the contrary, the Court has authorized a recovery for expenses incurred precisely because of the non-compensable sentimental or emotional bond between plaintiff and Pumkin. Sentimentality has been kept out at the front door, but has slipped in through the cat door.

I am aware of at least two cases, now in their very early stages before the Second District of the Court of Appeal in Los Angeles, that raise more or less the same question as has been addressed in Kimes. Particularly because I am counsel in one of those cases, it will be of great interest, philosophically and practically, to see whether the Second District will agree or disagree with the First.

~~~

Incidentally: In the concluding paragraph of its opinion, the Court confirms that punitive damages will be available if the injury to the cat is shown to have been "willful." California Civil Code section 3340 expressly authorizes punitive damages for injury to animals if the injury is "committed willfully, or by gross negligence, in disregard of humanity." Although that statute has been in place since 1872, Kimes is the first published appellate decision to so much as mention it.

Comments

This certainly isn't my area of expertise and, blank slate that I am, your post raises a couple of questions for me.

First, you write, "If Pumkin, for example, had been a prized show cat that could be shown to be worth, say, $2,500, there is little doubt that $2,500 would be the upper limit on damages and that the case would properly belong in Small Claims Court if it belongs anywhere." Is this true even where, as in this case, the show animal's owners can evidence that the animal was also treated as a family pet? In other words, is the assumption that if an animal has discernible market value as a rare, show, breeding, or other valuable animal, it cannot be also a pet?

Second, you write, "In practical terms, despite its protestations to the contrary, the Court has authorized a recovery for expenses incurred precisely because of the non-compensable sentimental or emotional bond between plaintiff and Pumkin." While this may be so, it may be that this is not the open cat door it might seem. The court sets the limit at the amounts actually spent. Thus, there would be two checks on recovery: 1) a plaintiff must actually incur out-of-pocket expenses; and 2) those expenses must be reasonable. A plaintiff could not make a purely emotional claim; s/he must have been sincere enough to have put some skin in the game to back-up his/her subsequent claims. Moreover, a plaintiff who goes off the deep end (as I think this one did) and spends a ridiculous amount in caring for an animal or spends an otherwise-reasonable amount on ridiculous procedures would see only a limited recovery.

As I say, I'm not even conversant with the issues you've raised; my curiousity was piqued by what you wrote and while that may kill a cat, I know now that $36,000 worth of veterinary work can avert this.

For the first: the court has allowed potential recovery of the care expenses precisely because it finds no other way to place "value" on the cat. Market value still seems to be the default measure of damages in these cases, if such a market value exists. I do not read this case as authorizing recovery of both market value and something additional for "value as a pet". The court itself, of course, might read things differently.

You make a good point, as well, concerning the necessity of "skin in the game" and the potential limitation of "reasonableness." Personal injury cases involving human victims wrestle with "reasonable and necessary" medical expenses all the time, but I do not think this court has it in mind to apply the same measure to animals as it does to humans. Assuming that is the case, how is "reasonableness" to be determined? Is it purely a matter for the discretion of the jury? Will there need to be expert testimony from qualified veterinarians on both sides?

At a minimum, the heightened potential recovery means that cases will be filed and litigated that otherwise would not be, or that cases will be filed in Superior Court rather than Small Claims, with resulting increase in expense for both plaintiffs and defendants. Given that my own practice regularly includes defense of veterinarians, this decision will change the legal landscape in the trial courts, at least until (unless) some other division of the Court of Appeal chooses to go in a different direction on the issue.

You seem to be arguing that a cat or dog, living beings capable of feeling both fear and pain, and who are individuals with individual personalities and characteristics, are no different legally, and should be no differently legally, than a chair or a table.

No, wait, those have some economic value, however slight. So living beings are apparently, less than easily replaced inanimate objects.

It's also worth noting that your veterinarian clients make most of their income from the fact that we don't regard pets as no different than inanimate property, to be replaced with a newer model whenever costs of "repair" exceed the cost of "replacement." Yet when something goes wrong, suddenly all that "your pet is a family member and deserves the same care" goes out the window.

In the long run, veterinarians are not going to be able to go on having it both ways.